PERU--EXECUTIVE SUMMARY

• Jurisdiction: Derecho Internacional

International Mining and Oil & Gas Law, Development, and Investment (April 2017)
CHAPTER 18F
PERU--EXECUTIVE SUMMARY
Ursula Zavala Carlin
Of Counsel
Rodrigo, Elias & Medrano Abogados
Lima

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URSULA ZAVALA CARLIN is Of Counsel with Rodrigo, Elias & Medrano Abogados, in Lima, in the Natural Resources area where she specializes in Environmental Law. She graduated from the University of Lima (2003), and received an LLM from Yale Law School in 2009. She counsels companies from diverse industries looking to comply with local environmental regulations. She has long experience in major projects, investment funds, and assisting multilateral agencies in legal aspects of the carbon market and climate change. Her practice also includes contract negotiation and drafting for the reduction of greenhouse emissions. Ursula Zavala is an expert in due diligence for projects attempting to qualify into the Clean Development Mechanism (Kyoto Protocol).

BIO: Ursula Zavala is a partner in the Natural Resources area where she specialized in Environmental Law.

Graduated from the University of Lima (2003), she pursued an LLM in Yale Law School where she graduated in 2009. She counsel companies looking to comply with local environmental regulations from diverse industries.

She has long experience in mayor projects, investment funds and assisting multilateral agencies in legal aspects of the carbon market and climate change. Contract negotiation and drafting for the reduction of greenhouse emissions.

Ursula Zavala is an expert in due diligence for projects attempting to qualify into the Clean Development Mechanism (Kyoto Protocol).

This is a summary by Ursula Zavala Carlín of Chapter Nine corresponding to Peru of the Book Indigenous Rights in South America - FPIC and Other Key Issues for Natural Resource Developments, Ed. Rocky Mountain Mineral Law Foundation, U.S.A. Colorado, 2016.

I. Is there a definition of indigenous people? And are mixed heritage communities or other traditional communities included in the definition?

Definition:

Peruvian law provides two (similar) definitions of indigenous people, which are found in the following laws:

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(i) Law on Protection of Native or Indigenous Peoples in Isolation and Initial Contact (Ley para la protección de los pueblos indígenas u originarios en situación de aislamiento y en situación de contacto inicial) No. 28736, dated May 18, 2006 ("Law on Native Communities").

According to Article 2(a) of the Law on Native Communities, "indigenous peoples" are "those who recognize themselves as such maintain their own culture, are in possession of an area of land, and that are part of the Peruvian State according to the Constitution. Such Communities include peoples in isolation and initial contact."

(ii) Law on the Right to Prior Consultation with the Native or Indigenous Peoples (Ley del derecho a la consulta previa a los pueblos indígenas u originarios, reconocido en el Convenio 169 de la Organización Internacional del Trabajo - OIT) No. 29785, dated September 7, 2011 ("Law on the Right to Prior Consultation") and its regulations, which were conceived in line with the parameters established by the International Labour Organization's Convention No. 169, ratified by the Peruvian State on February 2, 1994 ("ILO 169").

Pursuant to Article 3 of Supreme Decree 001-2012-MC, which approved the Regulations of the Law on the Right to Prior Consultation (Reglamento de la Ley No. 29785, Ley del Derecho a la Consulta Previa a los Pueblos Indígenas u Originarios reconocido en el Convenio 169 de la Organización Internacional del Trabajo - OIT), dated April 3, 2012 ("Regulations of the Law on the Right to Prior Consultation"), indigenous people are: "A population descended from the populations that inhabited the country at the time of colonization and that, whatever their legal status is, retain all their own social, economic, cultural and political institutions, or a part thereof; and at the same time, is self-recognized as such (...)."

In addition, the Law on the Right to Prior Consultation provides the key elements by which a certain population could be considered as "indigenous" for the purpose of that law. Those criteria must be taken into account when qualifying a population as "indigenous." We will refer to this definition, since it has a more comprehensive scope that is in line with the parameters set forth by ILO 169.In connection with the key elements referred above, Article 7 of the Law on the Right to Prior Consultation establishes objective and subjective criteria detailed below that must be present for a population to qualify as "indigenous peoples."

a. Objective criteria

Comprises the following parameters:

• Direct descent from native populations of the national territory.

• Lifestyle and spiritual and historical bonds with the territory traditionally occupied or used by this population.

• Having own customs and social institutions.

• Different cultural patterns and lifestyle from the other sectors of the national population.

b. Subjective criterion

This criterion refers to the collective consciousness of possessing a native or indigenous identity. Proving the existence of this so-called "subjective" criterion is very difficult.

:Key elements for the identification of "indigenous people"

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1. At this point, an analysis of the key elements used to determine whether a certain population should be considere d as "indigenous" is useful. We will describe each of these elements individually, but they should be jointly interpreted and assessed as a whole to determine if certain populations should be considered "indigenous."

(i) The first distinguishing element is related to the "direct descent from native populations of the national territory."

(ii) The second key element is having a "lifestyle, spiritual and historical bonds with the territory traditionally occupied or used by said population."

(iii) The third key element entails "having own customs and social institutions."

(iv) The fourth key element is having "different cultural patterns and lifestyle from the other sectors of the national population."

(v) The fifth and final key element is related to the subjective criterion of "self awareness" or "self identification" as native or indigenous people: the awareness of having different cultural patterns from the other sectors of the national population.

2. Per Article 3, section (k) of the Regulations of the Law on the Right to Prior Consultation, the concept of "indigenous people" must be understood within the framework set forth in Article 1 of ILO 169. According to Article 3, section(k), ILO 169 applies to:

(a) tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations;

(b) peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonization or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions.

3. As this definition indicates, the main characteristic of native and indigenous peoples is that they have maintained their own social, economic, cultural and political...